December 31, 2010

Several members of the transition team said they weren't sure what their responsibilities would be. They're expecting to learn more after the group gathers for the first time Wednesday, January 5. [Holloway was sworn as county exec December 28.]

By the way I don't believe the biggest objection to Goodwin Liu was his Berkeley law professorship — although that was probably enough for partisan buffoons like Jeff Sessions — but rather some incendiary remarks he delivered at Justice Samuel Alito's confirmation hearing.

On the other hand, we are expected to separate a prospective judge's political rhetoric from her ability to render impartial dispositions, but that is not the standard Republicans are espousing in Prof. Liu's case.

No, I don't think [Louis Butler] lost because of the Reuben Mitchell ad. It actually may have helped him.

But of course, it's always helpful to one to be publicly accused of being deliberately complicit in the sexual assault of a child.

I presume what the professor meant to say is that Gableman's own admittedly deliberate and carefully considered accusation may have been a quantitative electoral detriment to his political ambitions, but that is hardly the same thing as it being helpful to Louis Butler.

Seriously, a 32-person transition team, to prepare for 30 days sitting on a county government chair. I know it's populous Milwaukee, but aren't there only about ten counties in the entire State that even have county executives? That means 62 Wisconsin counties (86%) are operating competently without the position at all, none of which experienced a complete administrative collapse in recent memory.**

* He's actually got two: the Bishop and another Reverend to spare.
** Indeed, the only administrative turmoil has been in MKE County.

"Wiki-steal this book," advises the Milwaukee Journal-Sentinel's "generally right-wing guy" Patrick McIlheran, in twin reference to WikiLeaks publisher Julian Assange's forthcoming memoir and Yippie radical Abbie Hoffman's 1971 tome, Steal This Book. In the latter case, it was the book's own author that endorsed its theft. Here it's McIlheran, a third-party actor who was positively delighted when the private e-mails of climate scientists were stolen and leaked last year.

Mr. McIlheran is upset by Assange's "anti-American irresponsibility."

Yet apparently for McIlheran, the wholesale theft of intellectual property — the ownership of which is under other circumstances considered a sacred, inviolable right by American conservatives — is representative of pro-American responsibility, and here is its advocacy appearing on the pages of a major daily newspaper.*

Julian Assange has yet to be charged with any WikiLeaks-related crime, although several of Patrick McIlheran's political idols have alleged the commission of treason against the U.S. but without explaining how an Australian citizen might be held to such account.

McIlheran's other problem is that there is no copyright protection available for government documents whereas the unauthorized reproduction of Julian Assange's memoir would clearly be unlawful.

Which is what McIlheran is urging. Not that anybody has ever accused McIlheran — an award-winning journalist — of drawing logically valid analogies but this one is remarkably inapt and inept, even for him.

Reverend [sic] Sandra McGriff of The Church of the Living God is accused of breaking into the home of a parishioner on Christmas Eve to steal more than $10,000 worth of property, including fur coats, designer purses, and electronics. Police said a witness saw McGriff break into the home by climbing through a broken window. Said McGriff, "I'm not a burlgarer."

So do you think you'll catch Patrick McIlheran or Charlie Sykes or Mark Belling publicly lampooning the aesthetic predilections of their own conservative Republican fellow travelers and popular benefactors?

December 25, 2010

December 23, 2010

Incoming Wisconsin Senate leader Scott Fitzgerald is wearing them, apparently, as the latter rated a mere "False" this morning as opposed to Charlie Sykes's "Pants on Fire" collected on Tuesday.

While a similar evidentiary standard was applied to both Republicans leading to a likewise discovery — zero evidence provided for either of their lies — only Charlie Sykes's trousers erupted in conflagration.

Other Senate committees the Oshkosh millionaire has expressed interest in include Rules and Administration, but not to administer the rules, Armed Services, but not to arm the services, Judiciary, because the third time in his life to read Article III is the charm, and Indian Affairs, because he's always wanted to visit the Taj Mahal.

December 21, 2010

As the political debate drags on, the mute gray boxes atop Mauna Loa keep spitting out their numbers, providing a reality check: not only is the carbon dioxide level rising relentlessly, but the pace of that rise is accelerating over time.

"Appeals court says Walker overstepped authority with shorter work weeks," according to the Milwaukee Journal-Sentinel. "The State Court of Appeals ruled Tuesday that County Executive and Governor-elect Scott Walker's imposition of a 35-hour work week in 2009 as an emergency budget measure overstepped his authority."

Maybe I'm dim, but I can't find the court saying either of those things. Indeed, the key references to "authority" throughout are to the authority of the arbitrator in a labor dispute whose award disfavoring Scott Walker's position was vacated by a circuit court.

The paper might wade through several layers of inference to produce its headline and lead, but it does a disservice by directly attributing them to the court. In fact the opinion, written by Judge Ralph Adam Fine, whose cerebral calisthenics we have enjoyed previously, is careful — and gracious, it seems to me — to not even directly question the authority of the lower court whose decision the appeals court had been tasked to review (and which the appeals court this morning reversed, thus reinstating the arbitrator's determination).

Far from accusing anyone of overstepping their authority, the opinion is a reminder that arbitration is itself part of a collective bargaining agreement to which the parties have freely submitted, and that the courts play a severely circumscribed role limited to ensuring only that the arbitrator's decision does not violate the terms of the contract.

Or else is not patently and irretrievably insane.

In other words, whether Walker overstepped his authority is not even a question the court considers, let alone the court's "ruling" or even "saying" that he did or that he did not. Therefore no justification exists for those determinations to be attributed to this court.

It's an esoteric sensationalism, but sensationalism nevertheless.

Who knows, perhaps this is one step in a process of atonement for the Milwaukee Journal-Sentinel's bizarre endorsement of Scott Walker's gubernatorial aspirations in spite of the paper's opposing virtually every policy position enunciated during Walker's campaign.

Yesterday liberals went bananas, pursuant to a post by Prof. Orin Kerr at the Volokh Conspiracy, in which Kerr accused U.S. District Judge Henry E. Hudson, the author of Monday's PPACA opinion, of making a "significant error." Brian Beutler at TPM therefore called Hudson an "amateur," and MSNBC's Keith Olbermann made Hudson his "worst person in the world." Many others bowed to Kerr's apparent authority, including the inexplicably popular Madison blogger Ann Althouse.

None of them bothered to check Kerr's work before pounding out their screeds. But what should have been immediately obvious to anyone who had read the opinion — including Kerr — was that the passage Kerr was criticizing was not part of the judge's "ruling" but rather that portion of the opinion that was reiterating the arguments of the two parties, in this instance a claim made by VA's AG Ken Cuccinelli.

Hudson got it right and Kerr got it wrong, and embarrassingly so for a law professor. The [necessary and proper] clause does not establish [its own] substantive legislative authority. The substantive constitutional hook must come from a separate constitutional authority, in this case the interstate commerce clause. This much Kerr seems to get right.

Kerr’s analysis seems to imply that the N&P clause can render constitutional a specific statutory section that is otherwise unconstitutional because the section is part of a larger legislative scheme. This is incorrect.

In this case, the challenge is specifically that the individual mandate provision of Obamacare is unconstitutional. The S.Ct.'s analysis in Gonzales, Lopez, and Morrison* demonstrates that the specific statutory provision(s) being challenged are subject to scrutiny by the Court. The mere fact that a specific statutory section is part of a larger legislative framework is not sufficient to support the constitutionality of that specific provision.

In layman's terms, the mere fact that Congress possesses the power to regulate the broad field of health care under the commerce clause is not sufficient to rebut a challenge to the specific statutory section that requires individuals to obtain insurance. Congress must establish that it has authority to legislate the specific provision.

The absence of economic activity cannot be regulated by Congress under the [interstate commerce clause], regardless of whether the absence of economic activity is part of a larger legislative scheme. It is unconstitutional for Congress to impose an individual mandate to purchase insurance or otherwise engage in economic activity. Unconstitutional acts of Congress cannot be rendered constitutional by virtue of the N&P clause.

Hudson's opinion could perhaps have been more explicit on this point, but it is hardly necessary.

* Gonzales v. Raich (at issue: growing medical marijuana) stands for an expansive view of Congress's interstate commerce power, while U.S. v. Lopez (gun-free school zones) and U.S. v. Morrison (1994's Violence Against Women Act) both stand for a more restrictive application. These three Supreme Court cases (and a handful of others) provide much of the doctrinal grist for both supporters and opponents of the PPACA's individual insurance mandate.

As this Court previously cautioned, this case does not turn on the wisdom of Congress or the public policy implications of the [Patient Protection and Affordable Care Act]. The Court's attention is focused solely on the constitutionality of the enactment. . . . Despite the laudable intentions of Congress in enacting a comprehensive and transformative health care regime, the legislative process must still operate within constitutional bounds. Salutary goals and creative drafting have never been sufficient to offset an absence of enumerated powers. . . . Congressional findings, no matter how extensive, are insufficient to enlarge the Commerce Clause powers of Congress.

A Virginia federal judge is expected to rule today on whether the Obama administration's health law violates the Constitution ... and U.S. District Judge Roger Vinson in Pensacola, Fla. will hear arguments on Thursday in a challenge brought by officials in 20 states.

December 12, 2010

Here's a suggestion made in complete sincerity. Would it be possible to stop referring to the federal money as being "taken away"? The feds did not take this money away — they gave it to us. Mr. Walker, in his inexperience and ignorance, refused it and gave it back. Giving something back is not the same as the donor taking it back. It's an important point that goes straight to the heart of the issue. Trying to color this action as anything other than Mr. Walker's is inaccurate and misleading.

The opinion piece is either the daftest apologetic the paper has ever run, or else its most elegant expression of droll facetiousness.

The gist of the editorial is to congratulate Walker on a proposed bureaucratic reshuffling, semi-privatizing the State commerce department by recruiting a few outside marketing go-getters to kibbutz with similarly constituted entities throughout the Midwest.

(Political conservatives assume private sector actors are by definition vastly more efficient than their public sector counterparts, even in identical roles. This is axiomatic for conservatives, a veritable Article of Faith, so just concede their point because otherwise after a while the pig starts to enjoy it, as the saying goes.)

"We want to be bold," Walker said of the "Be Bold" report. "I want to be even bolder so we may take this plan and build off it, be more aggressive than what they're presenting."

Is the Journal-Sentinel being sarcastic? Because the report also engages prominently two substantial questions of policy that Walker just stuck his foot in last week, thus gaining national notoriety.

The first is Wisconsin's status as a donor State; that is, one that gets returned a smaller slice of the federal pie than the one it contributes.

Says the report:

If Wisconsin won $1 of federal spending for each $1 of taxes it sends to Washington, D.C., instead of the 86 cents we get back, much of the State’s budget deficit would disappear.

The argument for Wisconsin donating to less well-off States might have had some merit earlier in our history, but not at this juncture with our own economy in crisis. Wisconsin’s economy needs the federal dollars as much as any other State.

Look at him, funny

The report then recommends a number of strategies for securing more federal dollars, not any of which — oddly enough! — involves rejecting $810 million in federal dollars which the State of Wisconsin had previously labored mightily to duly secure and which today decorate the accounting ledgers of several of those "other States."

I don't know about you, but if somebody who just rejected $810 million came asking for more, I'd at least look at him a little funny, especially while there are 49 other States clamoring not to be donors.

If you're a Wisconsinite who just came in from the bush and didn't know what that $810 million was for, read ahead to the report's bullet point number 10, "Invest Strategically in State's Infrastructure."

While acknowledging that "additions to the State’s infrastructure are often controversial" — possibly a veiled reference to wing-nut radio personalities on the aforesaid broadcasting arm hooting 'Choo Choo!' at an impressionable Tea mob all morning — the business roundtable implores against a public myopia: "A long-term perspective must be maintained to understand and benefit from these investments."

Align developing rail strategies with State's economic development strategy, so players in leading clusters are connected to each other, such as universities and market-leading companies. Use rail strategies to connect Wisconsin to Chicago and Twin Cities economies.

Or precisely what governor-elect* Walker just shot down, by refusing the federally funded construction of a rail link between Wisconsin's two largest cities, part of an, er, "long-term perspective" hooking Chicago up with Minneapolis-St. Paul, via Milwaukee and Madison.

The fact is, Walker betrayed this report, and replacing half the commerce department with traveling salesmen has got nothing on turning down nearly a billion dollars in transfer payments while turning away thousands of construction and manufacturing jobs, and all essentially because it was passenger rail, not road construction.

How the Journal-Sentinel gets to lionizing Scott Walker for his conformance with this report is quite the feat of ... something.

The Milwaukee Journal-Sentinel's wrong-wing calumnist Patrick McIlheran noisily praises "religious people" (like himself, presumably) because they "make better givers," then links to a list of the top ten richest philanthropists, at least five of whom are not religious at all.

In fact neither of the two original organizers of The Giving Pledge, billionaires Warren Buffett and Bill Gates, are "religious people."

December 10, 2010

Eight hundred and ten eight million dollars worth of investment in public infrastructure fled from the State of Wisconsin yesterday, observes the Milwaukee Journal-Sentinel, "thanks to the opposition of Governor-elect Scott Walker and an apparent majority of State residents."

Yet situated directly left of this claim is a reader poll, showing 64% disagreement "with how Scott Walker has handled the high-speed rail issue." At the moment there's around 16,700 respondents, or 22.3 times the size of any McClatchy-Marist or Rasmussen sampling.

The latter are reported dutifully in the weeks preceding elections and tend to have the effect of influencing those outcomes, as many voters are inclined to support candidates whom they believe will win.

The Journal-Sentinel's refusal to acknowledge the apparent massive unpopularity of the governor-elect's self-congratulatory "victory" (the paper endorsedcareer politicianScott Walker for the top executive office) undermines the empirical reliability of a previous survey, which showed "shoveling the driveway" edging out "skiing or snowboarding" as the favorite snow activity of Wisconsinites.

Some political scientists believe that only the most ideologically committed activists respond to reader surveys, and this makes them even more skewed than are Mr. Rasmussen's toward Republicans.

Meanwhile the Journal-Sentinel's allegedly economics-minded right-wing calumnist Patrick McIlheran rejoiced in the loss of several thousand construction jobs with an emphatic "Good riddance."

The victorious governor-elect is expected to introduce "tort reform" provisions he suspects will compensate Wisconsin for the shortfall.

Mr. Gershengorn responds that the insurance requirement falls within Supreme Court precedents allowing Congress to regulate "activities that substantially affect interstate commerce." With each hearing, he has sought to perfect his argument that the act of not obtaining insurance is itself a consequential commercial decision. "The appearance of inactivity is just an illusion," he told United States District Judge Henry E. Hudson in October. "The consumption of medical services without paying for them, and then shifting those costs, has a devastating effect on the economy."

Except that for the purposes of constitutional interpretation, health care expenditures and revenues differ from other commercial endeavors only by a matter of degree. True: Health-related products and services account for an enormous portion of the economy. But if the Supreme Court accepts the government's argument, how is it going to draw the constitutional line in the sand separating health care from other types of commercial "activity," especially once the Court decides that "inactivity" is in fact itself a form of activity?

The would-be gentlemen's club proprietor also said it's not just black people he's going to ban from his future establishment. He says he has a problem with certain white people as well, but he couldn't just put a lengthy list of names on his building so he felt the "No Negro's Allowed" sign was the best policy.

Unlike Wisconsin, Florida had committed $280 million in State funds to a high speed rail line between Tampa and Orlando. In Wisconsin's case, the connection between Milwaukee and Madison was to be underwritten entirely with federal money (and the feds had indicated they would also pay the lion's share of annual maintenance costs).

So this morning governor-elect Scott Walker therefore succeeded in not only further federally financing the Tampa-Orlando line, but at saving Florida its $280 million. Wouldn't it be funny if the latter was reallocated to highway building, which is what the campaigning Scott Walker apparently believed he could do with his $810 million.

Whatever negotiations the Wisconsin governor-elect may have attempted toward that end with the federal DoT failed pretty hard.

Our campaign efforts will include building an organization that will return Justice Prosser to the bench, protecting the conservative judicial majority and acting as a common sense compliment [sic] to both the new [Republican] administration and legislature. — David Prosser for Supreme Court

The paper is half right about one thing: The longer Wisconsin waits to join — or file a friendly brief alongside — one of the existing lawsuits, the more Van Hollen's involvement appears purely political.

Truth be told, the incumbent governor James Doyle assumed much of the blame for politicizing the State's official response to the health care act. Recall that back in March, when Van Hollen expressed his desire to protect Wisconsin's position in the constitutional scheme, Doyle denounced the AG's plan as a "frivolous and political attempt to thwart the actions of Congress and the law of the country."

There's a legitimate question here, whether Congress has the power to coerce into existence, on threat of penalty, the commerce it is empowered to regulate. It's something that Congress has never attempted before and, despite the U.S. Supreme Court's approving on several occasions mighty dubious reaches of the interstate commerce power, there is no clear guidance as to this situation.

Except, of course, the text of the Constitution, which seems to me — and plenty of others far more knowledgeable — not to contemplate something like the insurance mandate that drives health care reform.

(But we don't read the Constitution much anymore; we tend to dwell instead on the interpretations of federal courts. That's a problem.)

Meanwhile the Journal-Sentinel accuses the mandate's legal challengers of "rely[ing] on faulty reasoning," and then the paper immediately frames the central inquiry as follows: "Is the purchase of health insurance an economic activity?" Obviously the answer to that question is 'Yes,' except unfortunately that isn't the question.

The problem is, there is no commerce — interstate or otherwise — to regulate at all until Congress forces it into existence on threat of penalty through the individual insurance mandate. That the federal government is one of limited, enumerated powers is not a Tea Party cliché, it's an historical fact plain to any cursory student of politics.*

And that the J-S compares a federal mandate to a State mandate, where States possess plenary as opposed to enumerated powers, belies either the paper's desperation or its ignorance. There simply is no such comparison and in short, it's incumbent on any of the State AGs to ensure those plenary powers are not about to be usurped by a seriously questionable exercise of otherwise limited federal power.

Talk about your faulty reasoning.

"It is absolutely essential to have a mandate," declares the J-S, in spite of the constitutional roadblocks its editorial utterly fails to engage. It may be good policy, and it may save hundreds of millions of dollars eventually, but you don't have to be an Idaho militiaman to be wary of judicial precedent that authorizes the federal government to force citizens into commercial transactions against their will.

The question the panel is being asked to decide is whether Congress may direct the president to declare a National Day of Prayer without violating the First Amendment's Establishment of Religion Clause.

Alternatively, the Seventh Circuit panel may choose instead to determine that the FFRF had no legal standing to sue Obama in the first place, in which case the circuit court can reverse the Wisconsin district court without ever reaching the above Establishment Clause question (some people would refer to the latter as "punting").

The oral argument does not provide much insight into which direction the court is inclined to adopt, but I think it's reasonably safe to say that at least two of the three judges do not seem particularly receptive to the FFRF's substantive First Amendment concerns.

The State has estimated that the law would save Wisconsin $745 million to $980 million from January 2014 through June 2019 as the federal government picks up a larger share of the cost of insuring residents with limited incomes. But Van Hollen said Wisconsin should bring a lawsuit to protect the balance of powers between the federal government and States.

December 5, 2010

Shortly after the announcement of Pope Benedict XVI's book, "Light of the World," the media presented breaking news: "The pope allows the use of condoms." By now, Catholics and the public in general should know that this is not true.

Not true, okay. Then, almost immediately:

The pope focuses on the central issue: a need to properly fight the cheapening of sexuality. Pope Benedict refers to the ABC Theory (Abstinence-Be faithful-Condoms), "where the condom is understood only as a last resort, when the other two points fail to work."

December 4, 2010

This train is not aimed at carrying people between Milwaukee and Madison (although it will if somebody wants to take it). This train is mainly intended to take people from Madison to Chicago and back.

There simply is no good way of making a 1-day trip from Madison to downtown Chicago and back. Driving I-90 to the loop can take 4 hours each way, and flying there takes about as long (when you include the TSA time and the hour or more it takes to take a taxi in from O'Hare).

The train (if Walker allows it to go forward) will take under 3 hours Madison-Chicago. While that doesn't seem like much of a difference, just an hour at most, there is a huge quality difference between train time and driving time. Time behind the wheel in Chicago traffic is unpleasant, stressful and tiring. Time on a train is comfortable, relaxing and productive.

And, the same author whose commentary is indented above debunks comparisons between Wisconsin governor-elect Scott Walker's heroics and those of the NJ Tea Party poster boy Chris Christie:

The Wisconsin project's capital expenses are 100% federally funded while the ARC tunnel was only 30% federally funded ...

Because NJ had committed $2.7 billion for the ARC tunnel, even after paying $300 million in cancellation costs, NJ still has $2.4 billion it can now use for highways. By contrast Wisconsin will walk away from the project with a new debt of up to $100 million.

What a way for the Journal-Sentinel to introduce the new district attorney for Calumet County, by reproducing an AP brief that leads with "once the victim of sexual assault" solely because her predecessor was the disgraced Ken Kratz, who resigned. Why should Kratz's exploits color the professional narrative of his successor?

They shouldn't. And it obviously wouldn't have been mentioned — certainly not in the lead — had the vacancy been caused by anyone but Kratz. Making that unwarranted connection is a real cheap angle.

eta 3: New DA provided the angle at a press conference: "Dietz says she took the allegations against Kratz very personally because she works to protect those victims and find justice for them. She was horrified by Kratz's behavior, and felt applying for the job was her calling." That sheds a far different light. WRN's reporting treats the matter least sensationally. Lesson: Read the longest accounts first.

Or so it says right here. Not quite, even if I did have any influence whatsoever in the matter (which I'm certain I do not, but thanks).

In fact I share Ms. Egelhoff's view of Justice Prosser as a kind and very bright man. He's considerably less of a doctrinaire conservative than his colleagues Justices Roggensack, Ziegler, and Gableman* and adheres to a current of sincere morality that becomes evident on the occasions he writes separately from the other members of the court.

I don't know that there are "tons" of remarks about Justice Prosser in this space, but I have defended him from what I thought was unfair criticism on more than one occasion. And I am not so much of an activist — and at the same time too much of a philosophical idealist — to see the court merely as an instrument of competing political and social attitudes. Indeed, the very idea of judicial elections and especially what they've turned into nowadays is somewhat distasteful.

The judiciary — at least in the federal sense, where I get my cue — is by design separate from and wholly independent of what the U.S. Supreme Court deliberately calls the political branches. Obviously the Constitution doesn't compel States to organize their judiciaries according to the federal model but there is sound bedrock beneath the Framers' conception of separation of powers and the special independence of the courts that States need to consider seriously.

By contrast look to Iowa, where three high court judges were deposed by voters for taking too literally the Fourteenth Amendment's Equal Protection Clause** (which does compel the States). Regardless of where the observer comes down on the merits of the same-sex marriage case in question, it must be admitted from that experience alone that the Iowa court became just another political branch.

In a word, superfluous, not merely "least dangerous."

And the mean$ by which political control of a State Supreme Court is gained or lost (popular elections with their attendant modern negative campaigning) got about as ugly as they could, right here in Wisconsin a couple of years ago. It was sometime around then that I started questioning the wisdom of popularly electing members of the Supreme Court, not because electors aren't capable of making the correct choices, but because the candidates apparently weren't.

However, we're taught supposedly to draw an intellectual distinction between the prospective judge's behavior on the campaign trail and her performance as a professional on the bench. Unfortunately recent events have drawn ethical distinctions between those two roles which shouldn't exist. In fact half of the court held that a colleague of theirs was unfettered by the very code of judicial ethics to which he himself had assented because he nevertheless had a right to say whatever he wanted about another judge's record whether it was "true" or not.

But for the time being there are elections, this one hasn't even started, and so we'll see how it goes. As for the blog post to which Ms. Egelhoff refers, "Marla Stephens for Supreme Court," that wasn't me trumpeting a personal declaration, but simply the label on the website that had recently appeared and where I embedded a link.

I don't want to be one of Charles Franklin's stupid voters who expresses support for an unknown quantity or else is committed against a certain incumbent no matter what (although the latter motivator seems as legitimate as any in exercising the franchise, and, e.g., why did they need to know anything about the other guy when they already knew all they needed to know about Feingold).

* Two terms ago the three voted as a bloc about 98% of the time.

** There is practically an irrebuttable presumption in equal protection doctrine that no such thing as equal protection may possibly exist.

December 2, 2010

The idea that Jesus died for homosexuals is insulting to Donohue; but it is what the church teaches and what Jesus lived. Which is why this reflexive, culture war spat is so depressing, so sad, so illustrative of how the alleged defenders of Christianity do not understand it at all.

F. James Sensenbrenner of Wisconsin (R-Allen Edmonds) had lobbied GOP leadership to keep the panel alive to probe the Obama administration's global warming policies,* but he's expected to be offered a lead role in investigating climate science on the Science Committee.

December 1, 2010

According to Plaintiffs, the conduct regulated by the provision—the failure to purchase health insurance—is a decision not to engage in interstate commerce, and consequently it is not a form of activity; rather, it is better characterized as inactivity, or "simply existing." . . .

I hold that there is a rational basis for Congress to conclude that individuals' decisions about how and when to pay for health care are activities that in the aggregate substantially affect the interstate health care market. . . .

Here, similarly, the choice of individuals to go uninsured affects national market conditions for health insurance, reducing the supply of consumers of health insurance who are in good health, and thereby increasing the cost of covering the insured population.

The "similarly" refers to the facts addressed in Gonzales v. Raich, where regulations defended under the interstate commerce power were held to reach marijuana cultivated for private use, which at least is an activity, and therefore in an important sense dissimilar from deciding to not grow marijuana. The latter decision likewise would contribute to there being less marijuana and thus also having an effect on the national market for marijuana (although probably not as "substantial" an effect as Congress had shown with its figures relating to the cost of providing health care to the uninsured*).

But, for the purpose of interpreting the language in the Constitution, it shouldn't make any difference whether the effect is measured in hundreds or hundreds of millions or even billions of dollars.

The Commerce Clause section is on pages 22 through 29. The district court does not expressly declare that the individual insurance mandate is a valid exercise of Congress's interstate commerce power, but only that Congress could reasonably conclude that it is.

'Not enough judicial activism,' some will complain.

* Or, more specifically, the higher cost of providing health care to the insured arguably caused by the substantial population of uninsured.